Summary: The Council passed on Mr X’s personal information to another organisation without his consent when it was dealing with his application for a Disabled Facilities Grant. This was fault and it caused Mr X distress. Mr X did not wish to have any further contact with that organisation following a complaint he had made about the conduct of a staff member. The Council has agreed to provide a remedy for this part of Mr X’s complaint. The other parts of Mr X’s complaint have not been upheld.

The complaint

1. Mr X complains that the Council:
1. wrongly refused to adjust its procedure when handling his application for a Disabled Facilities Grant to install a ground floor WC by agreeing to obtain an Occupational Therapy report from a source other than the Community Occupational Therapy team based in the local NHS trust;
2. imposed contact restrictions, and placed warnings on his social care records, to alert staff to risks posed by Mr X, and failed to tell him in writing about such restrictions and the reasons for them;
3. refused to allow him normal access to its services and required him to put everything to the Complaints Manager for reasons it has not properly explained; and
4. failed to investigate and reply to his complaints and service requests including matters related to the Disabled Facilities Grant and his request for repainting of markings on a disabled parking bay near his home.
2. Mr X says the Council’s failings caused him significant distress, anxiety and frustration. He has been put to time and trouble in pursuing complaints. It also caused delay in getting the disabled adaptations he needs.
3. Mr X’s complaint to the Ombudsman is about the Council’s actions. Mr X has separately pursued complaints about staff employed by the local NHS Trust. These complaints are outside the scope of this investigation.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but we must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6), as amended)

5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I have spoken to Mr X and considered all the information and photographs he provided. I have also considered relevant information held in our case records for Mr X’s previous complaint to the Ombudsman.
7. I have considered the Council’s reply to our enquiries, evidence from its social care records and correspondence between Mr X and Council officers.
8. I have written to Mr X and the Council with my draft decision and considered their comments.

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What I found

Background information

9. Mr X is an owner-occupier. He is disabled and has several chronic medical conditions, including Post Traumatic Stress Disorder, which impair his physical and mental health.
10. In 2013 Mr X made serious allegations about inappropriate conduct by a member of staff in the local NHS health trust (“the Trust”). The officer did not work in the Community Occupational Therapy team. The Trust and the Parliamentary and Health Service Ombudsman have investigated Mr X’s complaint. For the purpose of this investigation, there is no need to set out details of that complaint or the findings of those investigations.
11. The crucial point is that, since these events, Mr X has refused to have any further dealings or contact with the Trust. He is also unwilling for other organisations, including the Council, to share his personal information with employees of the Trust.

Disabled Facilities Grants for housing adaptations

12. Councils have a legal duty to award a Disabled Facilities Grant (DFG) to fund housing adaptations needed by a disabled person provided certain conditions are met. Before it can award a DFG, the council must be satisfied the work is necessary and suitable to meet the disabled person’s needs. It must also be satisfied it is reasonable and practicable to carry out the work. Most councils require an Occupational Therapist to assess the disabled person’s needs.
13. Oldham Metropolitan Borough Council commissioned the Community Occupational therapy team to carry out assessments for housing adaptations. This is the first stage in the application process for a DFG.
14. At the time of the events of this complaint, staff in the Community Occupational Therapy team were employed by the Trust.

Complaint a)

The Council wrongly refused to adjust its procedure for handling his application for a Disabled Facilities Grant to install a ground floor WC toilet or to agree to obtain an Occupational Therapy report on the need for the proposed work from another source rather than the Community Occupational Therapy team based in the Trust.

15. The Council makes a referral to the Community Occupational Therapy team to assess whether the person needs housing adaptations because of a disability. An Occupational Therapist then visits the applicant to assess his or her needs and make recommendations to the Council. The Council will then proceed with a DFG application if the relevant criteria are met.
16. In mid-September 2018 Mr X completed a form on the Council’s website to request a referral to the Community Occupational Therapy team. He listed his medical conditions and the impact on his physical and mental health. He said he needed a ground floor bathroom.
17. At that time, the Council’s website said an occupational therapist would consider the person’s circumstances and recommend the type of adaptation(s) needed. But it did not explain that the referral would be passed to the Community Occupational Therapy team at the Trust. The form did not ask the applicant to give consent to share information with the Trust.

18. In early December 2018 the Community Occupational Therapy team telephoned Mr X to make an appointment for an assessment at his home.
19. Two Occupational Therapists visited Mr X on 10 December 2018. One made some brief notes on an Occupational Therapy Care Plan. She recorded that Mr X had asked for a ground floor WC because he was having difficulty managing the stairs to access the WC on the first floor. The notes say this needed further discussion.
20. The Trust’s logo is on the first page of the Care Plan. Mr X signed the Plan below the following statement:

“I agree to the Care Plan.

I give consent to relevant information pertaining to this assessment to be shared with or information to be requested from Health and Social Care, Housing Representatives and specialist providers as necessary and appropriate.”

21. On 11 December Mr X contacted the Community Occupational Therapy team to say he did not want any further involvement with the Trust.
22. On 17 December the Occupational Therapist wrote to Mr X to say she could not recommend a DFG for a ground floor toilet without further medical evidence. She noted Mr X had a physiotherapy appointment in January 2019. She had closed his case but said she would review it if the physiotherapist made a new referral. She also confirmed that the Community Occupational Therapy team is part of the Trust.
23. Mr X later complained to the Council that it had shared his personal information with the Trust without his consent.
24. He also appealed against the outcome of the Occupational Therapy assessment and the Occupational Therapist’s view that he was not eligible for a DFG.
25. When the Council became aware of Mr X’s objections, and his refusal to have any further contact with the Community Occupational Therapy team, it agreed to accept an independent Occupational Therapist’s assessment report for the purpose of the DFG application. It later reimbursed Mr X £275 for the assessment and report.
26. The independent Occupational Therapist completed her assessment in February 2019. She sent her report to Mr X. She decided Mr X needed a ground floor toilet and wet room.
27. The Council accepted the independent OT’s recommendations and approved a Disabled Facilities Grant to fund the works. These works have now been completed.
28. During the Ombudsman’s investigation, the Council updated the information on its website. It now asks users to give consent to share information with health services on the referral form.

Analysis

29. The Council was at fault because the referral form did not explain that the Community Occupational Therapy team was part of the Trust. Furthermore, the Council did not seek Mr X’s consent to share information with the Trust which is a separate organisation. Mr X would not have known, at the time he completed the referral form, that his information would be sent to the Trust. He did not give consent for that to happen, and he would not have given consent if he had been asked.
30. Mr X objected to his personal information being shared with the Trust because of his previous experiences with a Trust employee which led him to make a complaint about her professional conduct. He considers the Council breached his right to privacy by sharing personal information with the Trust without his consent.
31. I do not consider the Council had any reason to know, when it forwarded the referral form to the Community Occupational Therapy team, that Mr X was especially sensitive about his information being shared with the Trust. It was an established arrangement for the Council to forward requests for an assessment for housing adaptations to the Community Occupational Therapy team. Nevertheless, it was fault to pass on Mr X’s personal information to another organisation without his consent and this caused Mr X distress.
32. The Council has agreed to apologise to Mr X for forwarding the referral form to the Community Occupational Therapy team at the Trust without his knowledge or consent. Although Mr X is seeking a substantial financial remedy too, I do not consider it is appropriate to recommend one on the facts of this case.
33. During this investigation, the Council has amended the information on its website to make it clear to users that it needs to share information with the Trust and to seek their consent to do so.
34. I do not consider there was any other fault. When Mr X made the Council aware of his concerns about the Trust, it agreed he could arrange for an independent OT to assess his needs. It later reimbursed Mr X for the independent OT’s assessment report.
35. It took just under two months from the Community Occupational Therapist’s visit to Mr X in December 2018 for the independent OT to provide her assessment in early February 2019. Inevitably it took time to find an independent OT and arrange an appointment for a home visit and assessment. I do not consider this delay was due to any fault by the Council.
36. The Council accepted the independent OT’s recommendations and approved Mr X’s DFG application. The works to install a ground floor wet room have been completed.

Complaint b)

The Council imposed restrictions on Mr X’s contact, and placed warnings on his records to alert staff, and failed to inform him about these restrictions and the reasons for them;

Restrictions on Mr X’s contact

37. I consider this is effectively covered by complaint c) so I shall deal with it in a separate section below.

Warnings in the social care records

38. The Health and Safety at Work Act 1974 places a legal duty on the Council, as an employer, to ensure the health safety and welfare at work of its employees, as far as is reasonably practicable.
39. Individual employees also have a duty under the Act to take reasonable care of their own health and safety, and of other persons who may be affected by his or her acts or omissions at work.
40. The Council says Mr X made abusive comments to the Occupational Therapists when they visited him on 10 December 2018. Mr X strongly denies making any abusive comments. He believes the Occupational Therapists must have misinterpreted a comment he made and taken it out of context. He has asked to see the Occupational Therapist’s statement of events.
41. One of the Occupational Therapists put a warning marker on the Trust’s database to alert other staff to her concerns about Mr X. She said there was a risk of physical assault. Mr X points out that the timing of this entry in the Trust’s records shows it was created before the Occupational Therapist had visited him. He does not consider there is any justification for this alert.
42. The Trust passed this information on to the Council. It did so because it knew Council officers would be involved in processing Mr X’s DFG application. It therefore needed to make them aware of the concerns reported by the Occupational Therapist.
43. Mr X did not know about the existence of the alerts until he made a subject access request to the Trust and obtained a copy of the records. He then asked to appeal against the decision.
44. The Council placed a warning marker on Mr X’s social care records on 20 December 2018. It did this in response to the Trust’s notification following the Occupational Therapist’s visit to Mr X’s home ten days earlier. The warning said:

“All professionals to visit in twos due to staff feeling intimated [sic] and inappropriate comments made.”

45. The warning on the Council’s records does not refer to any risk of physical assault.
46. In March 2019 the Council informed Mr X, in a letter responding to his subject access request for his personal data, that it did not have a policy about the use of warning markers. It said it had acted in accordance with its legal duties under the Health & Safety at Work Act. It said the warning marker would be reviewed in June 2019.
47. In early July 2019 a senior officer in the Council’s Community Health and Adult Social Care service carried out a six-month review. She informed Mr X the warning would remain in place and the wording would not be changed. She said the situation would be reviewed again in 12 months’ time. She invited Mr X to contact her if he considered the use of the warning indicator was not justified.
48. Mr X challenged the decision to keep the warning marker on his case records and requested an appeal.
49. In mid-August 2019 a senior manager in the Adult Social Care service and a senior manager from the NHS Trust made a joint visit to Mr X to consider his appeal. The Council’s senior manager wrote to Mr X in mid-September to say she had considered his comments, discussed his case with colleagues, and reviewed the evidence. She decided it was appropriate to retain the warning marker in his social care records.
50. The senior manager said a copy of her letter would be placed on Mr X’s social care record. A further review would take place in 12 months’ time.
51. Mr X says the senior manager did not provide him with information about further appeal rights. He said he intends to pursue the matter in Court.
52. Mr X considers the alert is unjustified. He says he has been severely traumatised by it. He is upset that it can be seen by all health and social care professionals who have access to the shared social care records.

Analysis

53. The Council acted in good faith on information from the Trust when it placed the warning marker on Mr X’s social care records. It regarded the Trust as a reputable organisation and felt it could rely on the information. I would not expect the Council to have conducted its own investigation of the incident which led the Trust to put the warning marker on its records.
54. The Council knew its officers would need to contact Mr X during the DFG application process. It has a legal duty to take steps to protect the health and safety of its staff. There does not need to be a risk of a physical assault to justify putting a warning marker on the case records. It can be used when staff report intimidating or threatening behaviour or inappropriate comments.
55. The Council did not have first-hand knowledge of what happened when the Occupational Therapist visited Mr X on 10 December. Mr X firmly believes the Occupational Therapist misinterpreted his remarks. But I do not consider it was fault for the Council to rely on the statement from the Trust, and err on the side of caution, by placing a warning marker on the social care records.
56. Mr X considers the warning marker is unjustified and is a slur on his character. He is concerned that it will be seen by other health and social care professionals who have access to these records. I know Mr X feels very strongly that he has been treated unfairly and his remarks were misinterpreted.
57. The wording the Council used for the warning marker does not say Mr X threatened to assault or physically harm staff. It says staff felt intimidated and inappropriate comments were made.
58. The Council has now reviewed the decision and a senior manager has considered Mr X’s appeal against the decision to retain the warning marker. I see no evidence of fault in the way the Council handled the appeal. The Council took Mr X’s views into account by arranging a face to face meeting with one of its senior managers. The Ombudsman cannot criticise the merits of the appeal decision simply because Mr X disagrees with it.
59. I found no evidence of fault by the Council.

Complaint c)

The Council refused to allow Mr X normal access to its services and required him to put everything to the Complaints Manager for reasons it has not explained properly;

60. The Council has not refused to provide Mr X with a service. Officers can visit in pairs if it is necessary to see him at home.
61. The Council says there are no contact restrictions in place for Mr X. He does not have a named officer as a single point of contact in the Council. It does not understand what led him to reach this conclusion. It says he contacts departments on a regular basis to raise issues in the normal way. There is no restriction on his contact, and no proposal to apply any such restriction. 
62. The Council says it has asked Mr X to direct any complaints to the Complaints team rather than raising them in a scattergun way with different officers.

Analysis

63. I have seen no evidence that Mr X is currently subject to any contact restrictions which limit his access to Council services or officers.
64. It is not unreasonable for the Council to ask Mr X to direct any complaints to its complaints team rather than raising them with different officers.
65. For these reasons, I have not upheld this part of the complaint.

Complaint d)

The request to repaint the disabled parking bay

66. There is a disabled parking bay on the road outside Mr X’s home.
67. In August 2018 Mr X asked the Council to repaint the road markings because he considered they were not sufficiently clear.
68. The Council says it only repaints road markings when it considers there is a risk motorists may not recognise it as a disabled parking bay.
69. A highways engineer inspected the bay and found the markings were slightly worn but they were still reasonably clear. Mr X was not satisfied with this response so he made a complaint in early October 2018. Another engineer then inspected the site and agreed with the first engineer’s assessment. He took some photographs on site which I have seen. The markings for the disabled parking bay are clearly visible. The Council did not uphold Mr X’s complaint.
70. Mr X made a further request in April 2019. The Council then arranged another site inspection. It found the markings were in much the same condition. It told Mr X it would not repaint the road markings.
71. Mr X sent me some close-up photographs of the markings taken in August 2019. These photographs are of individual letters in the word “disabled” on the road markings. The outline of some letters is slightly worn.
72. In response to my draft decision, Mr X sent a more recent photograph of the parking bay. This shows some wear and tear and fading of the lettering on the road markings. This was new evidence so I sent it to the Council and asked it to consider it. The Council has since confirmed it will arrange for officers from the highways service to make a further inspection of the parking bay to decide if it needs repainting.
73. Mr X has offered to meet the cost of repainting the parking bay from his own income. The Council says, as the highways authority, it is responsible for maintaining the parking bay and it will decide, following a further inspection, if it needs to be repainted. It will inform Mr X of its decision.

Analysis

74. The important point is whether a motorist using the road would recognise it is a disabled parking bay and not park there (unless they had a Blue Badge).
75. Having looked at the photographs Mr X and the Council sent me, and noted that the highways service had inspected the site twice and considered the road markings were sufficiently clear, I did not consider it was fault for the Council to refuse Mr X’s request to repaint them.
76. In response to my draft decision, Mr X sent a more recent photograph of the road markings. The Council has now agreed to carry out a further site inspection. It is for the Council, as the highways authority, to assess the condition of the road markings and decide if the bay needs to be repainted. This is in hand and we cannot achieve any more for Mr X.

The handling of Mr X’s complaints

77. When a complaint raises matters that involve health and social care, the complaint regulations place a duty on councils and the other relevant body to co-operate. They should identify a lead agency to conduct the investigation and provide a co-ordinated response. (The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)
78. Mr X first contacted the Ombudsman to make a complaint in January 2019. We decided his complaint was premature then because he had not completed the Council’s complaints procedure first. We referred it to the Council in early March 2019 for investigation.
79. In March 2019 Mr X made a written statement of complaint to the Council with 33 heads of complaint. The complaints cover the Council’s handling of the DFG application, breaches of data protection requirements and the warning marker on his social care records. Some complaints are about the conduct of staff employed by the Trust.
80. The Council’s Complaints Manager considered that most of Mr X’s complaints related to the actions of the Trust. However, Mr X wanted the Council to be the lead agency. He did not want the Trust to have any involvement. Mr X also refused to give the Council consent to share information with the Trust and send details of his complaint to the Trust. He later said he would give a limited form of consent.
81. Following further exchanges of correspondence with Mr X, the Council’s Complaints Manager decided it would not be possible to co-operate with the Trust on a joint investigation of the complaint. He therefore decided the Council and the Trust should carry out separate investigations.
82. The Complaints Manager sent Mr X a summary statement of his complaints against the Council and asked him to sign it. The Complaints Manager said Mr X’s concerns changed over time and he tended to raise new issues. He needed an agreed statement of complaint in order to understand Mr X’s concerns and have an agreed basis for the investigating officer to make enquiries. The Complaints Manager said it proved difficult to reach agreement with Mr X.
83. The Council also had concerns about conducting an effective investigation when it did not have consent to make enquiries to the Trust and share information with them. The Council could not agree to Mr X’s request to be copied in to correspondence between the investigating officer and other staff. The Council decided Mr X would not engage fully with the complaints process and considered it was more appropriate to refer him to the Ombudsman.

Analysis

84. The Council received Mr X’s complaint. It included complaints about the actions of staff who work for the Trust. In these circumstances, the Council had a legal duty under the 2009 Regulations to co-operate with the Trust to co-ordinate the arrangements for the investigation and to prepare a joint response.
85. There was extensive correspondence between the Complaints Manager and Mr X to try to resolve some issues. Mr X made it clear he did not want the Trust to be involved in the investigation. He refused to give consent for the Council to share information about his complaint with the Trust. He then said he would provide limited consent but the Council did not consider it could proceed on this basis. There was also difficulty in reaching agreement with Mr X on a focused and concise summary of his complaints. All these factors made it difficult for the Council to proceed with the investigation.
86. I do not consider the Council tried to obstruct the investigation of Mr X’s complaint. The Council had genuine concerns about how it could comply with its legal obligation to co-operate with the Trust to investigate the complaint in view of Mr X’s objections. It also had legitimate concerns about conducting the investigation without an agreed summary of the complaint. Mr X placed limitations on information-sharing with the Trust which created further difficulties. In view of these unusual circumstances, the Council’s decision to refer the complaint back to the Ombudsman was appropriate and therefore I do not find any fault by the Council.

Agreed action

87. The Council has agreed to apologise in writing to Mr X for sharing his personal information with the Trust without this consent. Although Mr X disagrees, I consider that provides a satisfactory remedy. The Council should send the letter to Mr X within one month.

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Final decision

88. I have completed the investigation and found it was fault for the Council to share Mr X’s personal information with the Trust without his consent. This fault caused Mr X distress. The Council has accepted my recommendation for a remedy.
89. I found no evidence of fault in relation to the other parts of Mr X’s complaint.

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Investigator's decision on behalf of the Ombudsman